NEWS

This article is a guest blog post by Melissa B. Brisman. She is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

In an article by Caroline Helwick, entitled “Fertility Preservation before Cancer Treatment”, she noted that oncologists attending the 2009 meeting for the American Society of Clinical Oncology suggest that cancer patients wishing to have biological children after their cancer treatment are not receiving the information they need early enough to preserve their fertility. Ms. Helwick suggests that nurses are best situated to have this conversation with cancer patients and provides advice to those nurses and other medical professionals on how to prepare and conduct conversations with cancer patients about the means to preserve their fertility so that they can build families after cancer.

First, physicians and nurses need to be informed about the options available to their patients. Cancer patients should consider the following reproductive options: 1) cryopreservation of their sperm, ova, or embryos for future use; 2) utilizing the services of a sperm and/or ovum donor; and/or 3) utilizing the services of a surrogate to carry the pregnancy. Cryopreservation involves the freezing of sperm, ova, or embryos with the intention that these materials will be thawed at a later date for use in creating a child. The procedure for preserving sperm is well-established. Freezing eggs is now also a viable option. In fact, ovarian harvesting from cancer patients, especially young women and even children who have not yet reached puberty, is on the horizon. Cryopreservation is an option that a cancer patient needs to be made aware of as early as possible so that the patient’s genetic material can be retrieved and stored before chemotherapy or radiotherapy can do any damage.

When cryopreservation is not an option, using donor sperm, donor ova, or even donor embryos is an alternative. Information about sperm banks and egg donor agencies is readily available on the internet and there are approximately 400,000 frozen embryos (a conservative estimate) in the United States alone. In most cases, if a patient elects to use the services of an anonymous sperm or ovum donor, there will be a cost to be paid to the sperm bank, the ovum donation agency, and/or the ovum donor. This is not the case with frozen embryos which may be available at no cost.

If a patient anticipates no longer having the ability to carry a pregnancy to term, using a surrogate, essentially a woman who agrees to carry a child for another individual or couple, is an increasingly acceptable and affordable method of gestating a cancer patient’s biological child. There are at least two types of surrogacy arrangements, “traditional” and “gestational,” and these arrangements can be compensated or uncompensated. A “traditional” surrogate shares a biological connection to the child, meaning that she carries a child conceived from her own egg and someone else’s sperm. A “gestational” surrogate, in contrast, does not share any biological connection to the child, but instead, gestates and carries an embryo which was transferred to her uterus and which was created from someone else’s egg and someone else’s sperm. Gestational carrier arrangements would afford cancer patients incapable of bearing their own biological children with a means of doing so. Some exploration on the internet will reveal a host of agencies dedicated to matching individuals with surrogates.

Second, encourage the patient to seek counsel from reproductive professionals, both medical and legal. There’s no disputing that fighting cancer can be an overwhelming process mentally, physically and emotionally. The medical professionals surrounding a cancer patient and treating the patient act as the patient’s team, supporting and shepherding the patient through their battle. Similarly, a cancer patient should gather a squad of reproductive medical and legal professionals to guide the patient through the process of planning for reproductive life after cancer.

Individuals looking for donors or surrogates can find them independently – often on-line. My recommendation would be to use an agency. Yes, it is a more expensive route to take, but an individual undergoing cancer treatments or recovering from cancer treatments probably does not have the time and energy to do the necessary legwork on his or her own. Let the agency do the work instead. A contact at the agency is one potential member of a patient’s reproductive team. Another vital member of a patient’s reproductive team is a physician and clinic specializing in infertility.

The final vital member of a cancer patient’s reproductive team is a reproductive lawyer. A reproductive lawyer can walk a patient through the legal steps necessary to protect the patient’s rights to cryopreserved genetic materials, either genetic or donated, and any children that result from such donated materials. In the event the cancer patient requires a surrogate, the reproductive lawyer can walk the cancer patient through each legal step necessary to protect the patient’s interests during the arrangement and make sure that the patient is the legal parent of his or her child once it is born. A reproductive lawyer is a crucial member of the reproductive coaching squad because the law has yet to catch up with advanced reproductive technologies. Some states have enacted statutes to regulate the use and parentage of genetic material and/or embryos used in assisted reproduction procedures. Regardless of the existence of statutory law, any person cryopreserving their sperm, eggs, or embryos for future use prior to cancer treatment should ensure that proper consent forms are on file at the fertility clinic and that all important issues are addressed, including the future disposition of all genetic materials. For instance, in the event that the cryopreserved sperm, eggs, or embryos are never used, will the materials be destroyed, donated, or allowed to be used by a partner in the future? Clinics should require that their patient sign consent forms which specifically indicate the disposition of unused ova, sperm or embryos.

Cryopreservation of embryos, especially, is not without some legal risk. If an individual creates embryos with their current partner, and the relationship terminates in the future, it may be incredibly difficult if not impossible for the cancer patient to use those embryos without the consent of the former partner. When those embryos represent the patient’s last resort at biological parentage, it can be incredibly devastating for the recovered cancer patient to never have had that chance. This particular situation has arisen many times in courts in the United States and the United Kingdom, and in almost all cases, the cancer patient has been unable to utilize the embryos after the former partner revoked previously given consent. As a result, it may be legally safer for one to freeze ova or sperm that are not yet fertilized to prevent this type of situation. This is only one example of why it is important for a cancer patient to strategize with a reproductive lawyer early on about how to protect his or her legal rights while preparing their reproductive future.

In the event an individual chooses not to cryopreserve his or her genetic material, but instead, pursue donor sperm, ova, or embryos there are several steps required to protect the patient’s interests. Many donors execute proper written consent forms provided by the relevant clinic or storage facility before making any donation; however, it is also prudent for a cancer patient to enter into a formal, written agreement with the donating parties in addition to the paperwork already on file with the relevant clinic or storage facility.

In the event that the cancer treatment or the cancer itself now prevents a woman from carrying a child, surrogacy is an option with a host of legal issues that need to be addressed. First, will there be insurance to cover the cost of the surrogate’s pregnancy? Second, will the intended parents be able to be named as legal parents on the child’s birth certificate without an adoption? A reputable reproductive lawyer, in conjunction with the professionals at the infertility clinic and a donor agency, as required, will be a tremendous asset to a cancer patient as the individual prepares for his or her reproductive future.

Finally, as these options are being considered and discussed, it is crucial to present the cancer patient with an encouraging and accepting attitude. It is entirely possible that the patient has never thought about methods of handling infertility or contemplated ever having to use alternative methods of building his or her family. The patient needs to not only know that these options are available, but also need to believe that these options are socially acceptable and, increasingly, commonplace. This belief is bolstered by the sheer number of chat rooms, blogs, and websites dedicated to ovum, sperm, and embryo donation and surrogacy on the internet. Encourage the patient to take the time to do some research on the internet, refer them to clinics, agencies, or attorneys you may know who have provided excellent service to other patients in the past. Your patient will be tremendously grateful that you took the time and interest to assist them in protecting their reproductive future.

If you are interested in an initial fertility consultation with CNY Fertility Centers either over the phone (if you live out of the NY State region) or in-office, please call our toll-free number at 800.539.9870 or request a consult here.